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United States v. Mendoza

United States District Court, D. Nevada

May 18, 2017




         Before the court is defendant Jessie Mendoza's motion to dismiss count three of his indictment. ECF No. 52. The United States filed a response (ECF No. 54), to which Mendoza replied (ECF No. 62). The court finds that Mendoza has not demonstrated that there is a realistic probability that a defendant can commit Hobbs Act robbery through the use of nominal (i.e., de minimis) force or through reckless, unintentional conduct. He has therefore failed to establish that this crime is not categorically a crime of violence under 18 U.S.C. § 924(c), and the court will deny his motion.

         I. Background

         Mendoza is charged by indictment with one count of interference with commerce by robbery under the Hobbs Act (“Hobbs Act robbery”), 18 U.S.C. § 1951, (count 2) and a related conspiracy count (count 1). ECF No. 9. He is also charged with brandishing a firearm in furtherance of a “crime of violence” under 18 U.S.C. § 924(c)(1)(A) (count 3). Id. This final count alleges that the Hobbs Act robbery charged in count 2 satisfies section 924(c)'s crime-of-violence element. Id. at 2-3. Mendoza now moves to dismiss count 3.

         II. Legal standard

         Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may file a pre-trial motion seeking to dismiss a count of the indictment for “failure to state an offense . . . .” “When ruling on a pretrial motion to dismiss an indictment, the district court is bound by the four corners of the indictment and must accept the allegations in the indictment as true.” United States v. Smith, 215 F.Supp.3d 1026, 2016 WL 2901661, at *2 (D. Nev. 2016) (citing United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996)). “‘A motion to dismiss [an] indictment cannot be used as a device for a summary trial of the evidence, ' and the court ‘should not consider evidence not appearing on the face of the indictment.'” Id. (alteration in original) (quoting Jensen, 93 F.3d at 669).

         III. Discussion

         Under 18 U.S.C. § 924(c)(1)(A), it is a felony to use or carry a firearm “during and in relation to any crime of violence . . . .” This statute therefore creates an offense separately punishable from the other concurrently-charged offense that the indictment alleges is a crime of violence. Section 924(c) defines “crime of violence” as a felony that

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The first clause in this definition is commonly referred to as either the “force clause” or “elements clause, ” while the second clause is known as the “residual clause.” Because the definition is worded disjunctively, a felony need only categorically match[1] one of the two clauses in order to constitute a crime of violence and thus satisfy that element under section 924(c)(1)(A).

         Here, the United States has alleged in the indictment that the concurrently-charged count of Hobbs Act robbery (count 2) is a crime of violence. ECF No. 9 at 2-3. The Hobbs Act “prohibits any robbery or extortion or attempt or conspiracy to rob or extort that ‘in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce.'” United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004) (quoting 18 U.S.C. § 1951(a)).

         Mendoza has moved to dismiss count three of his indictment, the section 924(c) charge, arguing that Hobbs Act robbery is not a crime of violence. He first contends that the court may not apply the residual clause because it is void for vagueness in light of the U.S. Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”) and the Ninth Circuit's decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31 (2016). Mendoza further argues that Hobbs Act robbery is not a categorical match for the force clause.

         As discussed below, the court finds that Hobbs Act robbery is categorically a crime of violence under the force clause. In turn, the court need not decide whether the residual clause is unconstitutionally vague. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”).

         A. The categorical approach applies to this analysis

         As an initial matter, Mendoza contends-and the United States does not dispute-that courts apply the categorical approach in determining whether an offense concurrently charged with a violation of section 924(c) is a crime of violence. This court agrees. Traditionally, the categorical approach is an analytical framework that sentencing courts must apply in determining whether a defendant's prior state or federal offenses mandate a sentence enhancement by satisfying either the violent-felony definition under the Armed Career Criminal Act (“ACCA”) or the crime-of-violence definition under the U.S. Sentencing Guidelines (“U.S.S.G.”).[2] See Taylor v. United States, 495 U.S. 575 (1990) (the ACCA); United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) (the U.S.S.G.). However, “the Ninth Circuit has consistently held that the categorical analyses apply to § 924(c) crime-of-violence determinations both at trial and at sentencing ‘without regard to whether the given offense is a prior offense or the offense of conviction [i.e., a concurrently-charged offense].'” Smith, 2016 WL 2901661, at *4 (quoting United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006)).

         Under the categorical approach, a court may only “compare the elements of the statute forming the basis of the defendant's [prior] conviction [or concurrently-charged offense] with the elements of” a crime of violence. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013) (emphasis added); see also United States v. Benally, 843 F.3d 350, 352 (9th Cir. 2016). Therefore, a court may not examine “[h]ow a given defendant actually perpetrated the crime- what [the Supreme Court has] referred to as the ‘underlying brute facts or means' of commission . . . .” Mathis v. United States, 136 S.Ct. 2243, 2251 (2016) (citation omitted). “The defendant's crime cannot categorically be a ‘crime of violence' if the statute . . . punishes any conduct not encompassed by the statutory definition of a ‘crime of violence.'” Benally, 843 F.3d at 352. Such statutes are often referred to as “overbroad.” See, e.g., United States v. Castillo- Marin, 684 F.3d 914, 919 (9th Cir. 2012).

         If the statute is overbroad, a court may then determine whether the concurrently-charged offense that the statute defines “can be divided into violations that constitute” a crime of violence and “others that do not.” United States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015). Such statutes are referred to as “divisible, ” meaning that they “list elements in the alternative, and thereby define multiple crimes.” Mathis, 136 S.Ct. at 2249. However, a statute that is worded disjunctively is not necessarily divisible. Id.; see also Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). “If the statute is indivisible, [the] inquiry ends, because a conviction under an indivisible, overbroad statute can never” categorically be a crime of violence. Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015).

         “Only when a statute is overbroad and divisible” may courts apply the “modified categorical approach. At this step, [courts] may examine certain documents . . . to determine what elements of the divisible statute [the defendant] was convicted of violating.” Id.

         Importantly, for a court to find that a statute is overbroad “requires more than the application of legal imagination to a . . . statute's language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). This finding “requires a realistic probability, not a theoretical possibility, ” that a statute would apply to conduct not encompassed by the crime-of-violence definition. Id. “To show that realistic probability, an offender . . . may show that statute was so applied in his own case. But he must at least point to his own case or other cases in which . . . courts in fact did apply the [offense] in the special . . . manner for which he argues.” Id. However, if a statute “explicitly defines” the concurrently-charged offense more broadly than the crime-of-violence definition, then “no ‘legal imagination, ' is required to hold that a realistic probability exists that” the offense is overbroad. Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015).

         1. The Hobbs Act is divisible but Hobbs Act robbe ...

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